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Civil Service Disclosure of Wrongdoing Regulations made under Section 45 of the
Civil Service Act
R.S.N.S. 1989, c. 70
O.I.C. 2004-374 (September 16, 2004), N.S. Reg. 205/2004
Definitions
1 In these regulations,(a) "civil service" means the positions in the public service of the Province to which appointments may be made by the Public Service Commission and such other positions as may be designated as positions in the Civil Service by the Governor in Council;
(b) "Commissioner" means the Public Service Commissioner;
(c) "deputy head" means the deputy of the member of the Executive Council presiding over a department and all others whom the Governor in Council from time to time designates as having the status of deputy head;
(e) "employee" means a person appointed to the civil service;
(f) "Ombudsman" means the Ombudsman appointed under the Ombudsman Act.
Wrongdoing
2 (1) For the purposes of these regulations, a wrongdoing occurs if there is(a) a contravention of any Act of the Parliament of Canada or of the Legislature, or of any regulations made under any such Act, if the contravention relates to the official activities of employees or any public funds or assets;
(b) gross mismanagement;
(c) an act or an omission that creates a substantial and specific danger to the life, health or safety of a person; or
(d) the taking of a reprisal against an employee.
(2) For the purposes of clause (1)(b), gross mismanagement means a deliberate act or an omission showing a reckless or wilful disregard for the efficient management of significant government resources.
Protection of employee from reprisal
3 (1) A reprisal occurs if any of the following measures are taken against an employee by reason solely that the employee has, in good faith, made a disclosure of a wrongdoing under these regulations or expressed an intention to make a disclosure of a wrongdoing under these regulations or has, in good faith, co-operated in an investigation carried out under these regulations:(a) a disciplinary measure;
(b) demotion of the employee;
(c) termination of the employment of the employee;
(d) any measure that adversely affects the employment or working conditions of the employee; or
(e) a threat to take any of the measures referred to in clauses (a) to (d).
(2) No person shall take a reprisal against an employee.
Request for advice
4 (1) An employee who is considering making a disclosure of a wrongdoing may make a written request for advice to the Conflict of Interest Commissioner designated under Section 26 of the Members and Public Employees Disclosure Act.(2) The Conflict of Interest Commissioner must not publically disclose any information provided under subsection (1) and must protect the identity of persons named under subsection (1), unless otherwise required by law.
Contents of disclosure of wrongdoing
5 (1) A disclosure of a wrongdoing under subsection 6(1) must be in writing and must include the following information, if known:(a) the nature of the wrongdoing;
(b) the name of the person or persons alleged to have committed or about to commit the wrongdoing;
(c) the date and description of the wrongdoing; and
(d) whether the disclosure has already been made and a response received under these regulations,
and any additional relevant information.
(2) A disclosure of a wrongdoing under subsection 6(1) must be made within 12 months of the employee becoming aware of the wrongdoing.
Procedure for disclosure of wrongdoing
6 (1) An employee who reasonably believes that they are being asked to commit a wrongdoing, or who reasonably believes that a wrongdoing has been committed or is about to be committed, may disclose the matter to(a) their immediate supervisor;
(b) their deputy head, in accordance with Section 8; or
(c) the Ombudsman, in accordance with Section 10.
(2) Despite subsection (1), an employee may make a disclosure of a wrongdoing other than as provided for in subsection (1) if they believe on reasonable grounds that
(a) it is necessary to do so to prevent imminent and serious danger to the life, health or safety of a person; and
(b) there is not sufficient time to make the disclosure under these regulations.
(3) A disclosure under subsection (2) must be made to the police department or police agency that the employee reasonably believes can address the imminent and serious danger identified.
Response of immediate supervisor to disclosure of wrongdoing
7 (1) A supervisor who receives a disclosure of a wrongdoing under clause 6(1)(a) must investigate the matter to the extent appropriate and must respond in writing to the disclosing employee within 30 days of receiving the disclosure.(2) A supervisor who receives a disclosure of a wrongdoing under clause 6(1)(a) must report in writing to their deputy head, within 30 days of receiving the disclosure, advising of
(a) the disclosure;
(b) the results of the investigation to date; and
(c) the written response to the disclosing employee.
(3) Unless required by law, a supervisor who receives a disclosure of wrongdoing under clause 6(1)(a) must
(a) not publically disclose any information that comes to their knowledge in the performance of their duties under these regulations; and
(b) to the extent possible, protect the identity of persons involved in the disclosure process, including employees, witnesses and persons who are alleged to be responsible for wrongdoings, from publication.
Disclosure of wrongdoing to deputy head
8 To make a disclosure of a wrongdoing under clause 6(1)(b), an employee must(a) have received a response from their immediate supervisor under subsection 7(1) and must reasonably believe that the matter will not be appropriately addressed; or
(b) reasonably believe that it would not be appropriate to disclose the matter to the employee’s immediate supervisor because of the subject-matter of the wrongdoing or the person alleged to have committed it.
Response of deputy head to disclosure of wrongdoing
9 (1) A deputy head who receives a disclosure of a wrongdoing under clause 6(1)(b) must investigate the matter to the extent appropriate and must respond in writing to the disclosing employee within 30 days of receiving the disclosure.(2) A deputy head who receives a disclosure of a wrongdoing under clause 6(1)(b) must report in writing to the Commissioner, within 30 days of receiving the disclosure, advising of
(a) the disclosure;
(b) the results of the investigation to date; and
(c) the written response to the disclosing employee.
(3) Unless required by law or considered appropriate by the deputy head under the circumstances, a deputy head who receives a disclosure of wrongdoing under clause 6(1)(b) or a report under subsection 7(2) must
(a) not publically disclose any information that comes to their knowledge in the performance of their duties under these regulations; and
(b) to the extent possible, protect the identity of persons involved in the disclosure process, including employees, witnesses and persons who are alleged to be responsible for wrongdoings, from publication.
(4) A deputy head who receives a disclosure of a wrongdoing under
subsection[clause] 6(1)(b) or a report under subsection 7(2) may, within 30 days of receiving the disclosure or report, refer the matter to the Ombudsman and the referral must be treated in the same manner as a disclosure of a wrongdoing under clause 6(1)(c) made for the reason set out in clause 10(a).Disclosure of wrongdoing to Ombudsman
10 To make a disclosure of a wrongdoing to the Ombudsman under clause 6(1)(c), an employee must(a) have received a response in accordance with subsection 9(1) and must reasonably believe that the matter will not be appropriately addressed; or
(b) reasonably believe that it would not be appropriate to disclose the matter to the employee’s immediate supervisor or deputy head because of the subject-matter of the wrongdoing or the person alleged to have committed it.
Investigation by Ombudsman
11 The Ombudsman must investigate a disclosure of a wrongdoing under clause 6(1)(c) unless the Ombudsman is of the opinion that(a) the disclosing employee ought to have exhausted other procedures available to them;
(b) the subject-matter of the disclosure is one that could more appropriately be dealt with, initially or completely, according to an alternate procedure provided for under an Act of the Legislature, regulation or policy;
(c) the subject-matter of the disclosure is trivial, frivolous or vexatious;
(d) the disclosure was not made in good faith with the reasonable belief in the truth of the allegations;
(e) the disclosure does not provide adequate particulars of a wrongdoing as required by subsection 5(1);
(f) the matter was not submitted within the time limit specified in subsection 5(2);
(g) the matter should be referred to another authority having jurisdiction to investigate; or
(h) having regard to all the circumstances of the case, further investigation is not warranted.
Notification of investigation
12 (1) If the Ombudsman concludes under Section 11 that it is appropriate to investigate a disclosure of wrongdoing under clause 6(1)(c), the Ombudsman must give written notice to the disclosing employee, the deputy head of the department to be investigated and the Commissioner.(2) If the Ombudsman concludes under Section 11 that it is not appropriate to investigate a disclosure of wrongdoing under clause 6(1)(c) made for the reason set out in clause 10(a), the Ombudsman must give written notice to the disclosing employee, their deputy head and the Commissioner of the Ombudsman’s conclusion and of the reasons for it.
(3) If the Ombudsman concludes under Section 11 that it is not appropriate to investigate a disclosure of wrongdoing under clause 6(1)(c) made for the reason set out in clause 10(b), the Ombudsman must give written notice to the disclosing employee and the Commissioner of the Ombudsman’s conclusion and of the reasons for it.
Ombudsman’s report of investigation
13 (1) The Ombudsman must report any investigation findings in writing, including,(a) the information received in the disclosure;
(b) the steps taken in the investigation;
(c) a summary of the evidence obtained; and
(d) whether a wrongdoing has been established,
and any additional relevant information, to the disclosing employee, any deputy head involved in the disclosure or the investigation, and the Commissioner.
(2) If a finding of wrongdoing is made by the Ombudsman, the Ombudsman
(a) must recommend measures in writing to correct the wrongdoing to the appropriate deputy head, and send copies to the disclosing employee and the Commissioner; and
(b) may request notification, within a specified time, of any steps taken to give effect to the recommendations made under clause (a).
Deputy head to respond to Ombudsman’s recommendations
14 In addition to any requested notification under clause 13(2)(b), a deputy head who receives recommendations under clause 13(2)(a) must respond in writing within 30 days to the Ombudsman and must provide a copy of the response to the Commissioner.Ombudsman may report to member of Executive Council
15 If the Ombudsman considers it necessary, the Ombudsman may report a matter to an appropriate member of the Executive Council, including, but not limited to, when(a) action has not been taken within a reasonable time in respect of one of the Ombudsman’s recommendations to a deputy head under clause 13(2)(a); or
(b) a situation exists that constitutes an imminent risk of a substantial and specific danger to the health and safety of the public.
Ombudsman’s annual report
16 The Ombudsman must, within 3 months after the end of each fiscal year, submit an annual report to the Commissioner setting out, for that fiscal year(a) the number of general inquiries relating to these regulations;
(b) the number of disclosures received;
(c) the number of investigations commenced;
(d) the number of recommendations made pursuant to clause 13(2)(a);
(e) whether there are any systemic problems that give rise to wrongdoings; and
(f) any recommendations for improvement that the Ombudsman considers appropriate,
and any additional matter that the Ombudsman considers necessary.
Commissioner’s annual report
17 (1) The Commissioner must report annually to the Minister responsible for the Public Service Commission respecting the disclosures of wrongdoing made during the fiscal year.(2) The Minister will table the report received under subsection (1) in the House of Assembly.
Cooperation with Ombudsman
18 (1) A deputy head must provide the Ombudsman with any facilities, assistance, information and access to the offices under their control and direction that the Ombudsman requires for the performance of the Ombudsman’s duties under these regulations.(2) Subject to Section 19, every employee must co-operate with the Ombudsman and provide the Ombudsman with any information that the Ombudsman may require in the performance of the Ombudsman’s duties under these regulations.
Information employee not authorized to disclose
19 Nothing in these regulations authorizes an employee to disclose(a) information that would reveal the substance of deliberations of the Executive Council or any of its committees; or
(b) information that is protected by solicitor-client privilege.
Disciplinary action against employee
20 In addition to, and apart from, any other sanction provided for by law, an employee may be subject to appropriate disciplinary action, including termination of employment, if the employee(a) commits a wrongdoing;
(b) makes a disclosure of a wrongdoing and the disclosure is frivolous, vexatious or in bad faith; or
(c) makes a disclosure of a wrongdoing other than in the course of a procedure established under these regulations or any Act of the Legislature or when otherwise lawfully required to do so.
False or misleading statement
21 No person shall, in a disclosure of a wrongdoing or in the course of any investigation of a wrongdoing, knowingly make a false or misleading statement, either orally or in writing, to a supervisor, deputy head, the Ombudsman or a person acting on behalf of or under the direction of any of them.Obstruction in performance of duties
22 No person shall wilfully obstruct a supervisor, a deputy head, the Ombudsman or any person acting on behalf of or under the direction of any of them, in the performance of their duties under these regulations.Destruction, falsification or concealment of documents or things
23 No person, knowing that a document or thing is likely to be relevant to an investigation under these regulations, shall(a) destroy, mutilate or alter the document or thing;
(b) falsify the document or make a false document;
(c) conceal the document or thing; or
(d) direct, counsel or cause, in any manner, any person to do anything mentioned in clauses (a) to (c), or propose, in any manner, to any person that they do anything mentioned in those clauses.
Confidentiality obligation of Ombudsman
24 Unless required by law or permitted by these regulations, the Ombudsman must(a) not publically disclose any information that comes to the Ombudsman’s knowledge in the performance of the duties under these regulations; and
(b) to the extent possible, protect the identity of persons involved in the disclosure process, including employees, witnesses and persons who are alleged to be responsible for wrongdoings, from publication.
Grievances and appeals not prohibited
25 Nothing in these regulations prohibits a person from filing a grievance under an applicable civil service collective agreement or an appeal under Section 94 of the Civil Service General Regulations.